Considerations of the Common Law - Essay Example

Common Law Question The constituent of consideration forms a major portion of sale of goods and services. Under English Contract law, except under exceptional circumstances, there needs to be consideration flowing from both parties- sellers and buyers of goods, services and utilities, and without consideration, contracts may be void ab initio, or become so in due course. Section 15 Part II, Sub Sections 1 and 2, of the UK Supply of Goods and Services Act 1982, (SOGSA) which relates to implied terms of consideration delineates as follows: “(1)Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge. (2)What is a reasonable charge is a question of fact.” (Supply of goods and services act 1982: Implied term about time for performance, 1982). Thus, the first aspect is to determine whether demand of A£22 (£17 + 5) by the Broadband provider Company, for Super Super fast internet services by Cablefast could be legally envisaged as not reasonable under provisions of Section 15 (II) of the SOGSA 1982, since this was not part of the original contract, but what added later by Broadband Provider. Satisfactory quality and suitable for purpose ordered: Another relevant aspect is regarding provision of goods and services in that there is an implied clause in the Sale of goods and services that the products or services sold are of satisfactory quality and shall be suitable for the purpose for which it has been purchased. Besides, in this case it is believed that the buyer, Abigail, had relied on the skill and knowledge of the seller, Cable Fast, but ultimately, the services could not meet the needs of the buyer. Further, she had also informed Cablefast that she actually needed superfast broadband because she was a movie buff and a busy film critic, and yet there has been lowered degree of service provision by the internet service provider, Cable Fast. Application of duty of care rule of landmark case: Further, in this case, it is important to note that Cable Fast owes the buyer, Abigail, a duty of care. In the 1964 landmark case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, this issue arouse, especially under circumstances under which one party placed trust and reliance on the pronouncements and actions of another. Although the bank had categorically disclaimed their responsibility in providing credential opinions, yet, the duty of care aspect was evident. In deciding this case, the judge observed, “I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference.” (Hedley Byrne & Co Ltd v Heller & Partners Ltd: Judgment, 1964). Exclusion clause needs to be part of original contract and made know to parties: The fact that needs to be considered in this case is that the exclusion clause has not been an integral part of the original contract and perhaps Abigail was not aware of it. Conclusion: Thus, the additional payment may not be enforceable, at the option of the buyer. In the case of exclusion clauses in contracts, it is necessary that contracting parties are aware of the terms and conditions under which they are contracting.” A company may demand, for example, that it be excused of liability before it will agree to provide a product or service. The exclusion clause makes it clear that both parties are aware of this agreed-upon term and that they understand the risks of the contract.” (What is an exclusion clause? 2010). Thus, it is quite possible that Cable Fast may not be able to enforce the amended enhanced clause provision of A£5 on this contract since the buyer, Abigail, was not aware of the small print and its implications on the contractual status. Question 2: Coming to the second scenario, it could be inferred that the buyer, Abigail could not be held responsible for these issues, since these were outside the purview of contract. Implications of laws under FACT: The matter of Federation against Copyright Theft (FACT), informing her that she is going to be prosecuted for downloading illegal copies of movies may not be enforceable. According to FACT, you are permitted to purchase overseas DVDs over the net, “, as long as the trading company – the company you buy it from - does not carry out the transaction within the United Kingdom. For example, it is not an offence to access an American based website and purchase the product online, as long as the product is for your personal use, and is not re-sold within the UK. The point of sale therefore must not take place in the United Kingdom.” (What if I buy a DVD over the internet? n.d). Another aspect that could work out in Abigail’s favour is that she is downloading the films for personal and private use, and not for pubic distribution or any kind of public performance. This being said, it is further noted that neither was she cognisant nor made aware about the fact that Slipstream Films did not have the rights to stream films in the European Union. She could be considered a lay person in as far as knowledge about the legal implications of downloading movies could be concerned, and perhaps it was necessary for Cable Fast, the services provider to caution her about the use of websites, being professional experts in the field, and being relied upon by lay persons like Abigail, to update her regarding these unknown aspects of internet business. However, in this case, there is a specific disclaimer by the broadband provider, Cable Fast, which the users utilise the broadband services at their own risk, and the company is not responsible for any actions, or inactions on the part of customers. While this may offer protection to the company over its liability to customers since this disclaimer is a part of the original contract and the parties were aware of it from the beginning itself. It is germane to mention in this context that illegal and unauthorised uploading of video contents materials and films do cause a great deal of harm to genuine business interests. It is not only illegal to download films for commercial/public viewing and distribution, but also, as per the new UK internet laws, even private viewing of illegal films could be declared contraband and strictly enforced. “Material sent over the internet or stored on web servers is generally protected in the same way as material in other media. It is a fallacy that once material is posted on the internet it somehow enters the public domain.  Anyone placing copyright material on the internet, or distributing or downloading material that others have placed on the internet, must therefore ensure that they have the permission of the copyright owner unless the use of the material falls within an exception. A copyright notice on a website will often set out what you can and cant do with the material on that site.” (Copyright law: The basics, 2008). However, the purpose of use of the films downloads is also an important issue. For instance, in the scenario, Abigail’s case would fall under fail dealing under which “there is no copyright infringement when the use is fair and is for one of a list of specified purposes (for example where it is for the purposes of review and criticism, none commercial research or private study).” (Copyright law: The basics, 2008). Conclusion: It could be convincingly claimed that the use of these downloaded films by the buyer is for review and criticism, part of film critic and buff’s occupation and not for commercial gains through public distribution and viewship. Question 3: Introduction: In today’s business environment, accidents are not being merely regarded as accidents, but as faults of the persons concerned with the operations of such machinery, equipment or vehicles, even though it is quite capable of being caused, due to malfunctioning of the said machinery itself. In some accidents, the victims are alive to answer for their alleged misdeeds, while in other cases, they become fatal casualties of their own errors and misjudgement, making the process of establishment of guilt more onerous and difficult for the investigating authorities. The fact that modern accidents are caused more on account of environmental and real factors than human are often overlooked, thus establishing a strong case for enforcement of tort laws, and the dispensation of justice and fair quantum of compensation for injured or aggrieved parties. But the fact remains that a person, howsoever responsible, cannot be held liable for something that occurred beyond his control and powers, no matter how much he tries to avoid them. The law of torts needs to look beyond economic redemption and seek out the real causes of economic losses and damages, sometimes beyond repairs. This flow from the basic premise that although man’s moral values and instinctive thinking may have changed over passage of time, this has not been sufficient to cause such a high and heavy toll of economic accidents of every genre and ilk. Perhaps, the indiscriminate and haphazard growth and accretion of machinery, vehicles on the roads and other equipment for commercial usage, profit and revenue driven growth in industrial operations, and changes in value systems, have all contributed, directly, or indirectly in massive losses that now confront industry and commercial activities. Besides, the tort Laws, although seeking to control and circumvent such accidents, may not really serve the purposes, since the root causes of these evils lie elsewhere, in man’s constant yearnings for materialistic benefits at the expense of machines and equipments. Coming to the role of the law of Torts in business activities, it could be said that there are different kinds of tortuous liability and they are: 1. Liability arising out of violation of Human Rights and causing injury to human beings- violation of European Convention of Human Rights (ECHR) 2. Liability for Trespass 3. Tort of negligence 4. Claims arising out of nuisance and related matters. 5. Professional negligence and medical misconduct. It is believed that tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons in general and its contravention is remedied by an action for unliquidated damages, payment of costs and expenses. Perhaps, one of the major areas where tort laws could be successfully employed and enforceable is in the human rights jurisdiction. “The Human Rights Act 1998 has introduced what can be regarded as an umbrella over the rights of individuals, enabling them to resist oppression by the state by challenging the legitimacy of acts and omissions by the state and/or failures of the law to give effective protection of those rights which the Convention sets Out as fundamental.” (The origins and character of tortious liability, 2004, p.17). Perhaps one of the major issues with tort has been the element of compensation due to the injured or aggrieved party, arising from tort negligence. While in the past, losses were borne by the defendant, nowadays the insurers companies, Third parties and with the social insurance scheme in vogue, there were many options from whom injured or aggrieved parties could raise claims. Hence the shifts in sharing of liability has been one of the key aspects of tort laws, in an ever evolving legal scenario. As Fleming himself puts in his book, An Introduction to the law of Torts, "This change of emphasis from loss-shifting to the loss-spreading function of tort law is bound to modify much of the conventional thought concerning the so-called attribution of legal responsibility". (Speeches: Comparativism, realism and the economic factor, n.d). Conclusion: Perhaps one of the most critical aspects of the law of Torts, is that it is designed to provide economic compensation to the injured, or aggrieved party for damages, or injuries caused by third parties. Perhaps one of the major characteristic is that this quantum of loss, or injury is of an indeterminate amount, for or to an indeterminate class of people and for an unfixed and unknown time. Perhaps it is the aura of uncertainty and mysticism that is most alluring from the legal point of view. Question 4: The main aspect that needs to be considered in this fourth scenario is that the actions of the inexperienced technician, Barry has caused the power supply outage in the vicinity causing economic and non-economic losses, to the following people: Charles – loss of cannabilis plants worth A £ 5,000: But the fact that would need to be argued is whether Cable Fast owed a duty of care to just the customer or to the world at large, including Charles, Davina and Euanis, who were the targets of accidental nuisance committed by Barry, employee of Cable fast Company. Applying the law of tort, it is believed that the court would apply the rule of reasonableness and the degree of care which had to be taken, irrespective of the fact whether the cause of injury or damage was remote or not. In this case, it needs to be proved that: (a) the broadband service provider company, Cable Fast owes Charles, the cannabis grower, a duty of care. (b) There has been a breach of this duty of care and responsibility (c) Economic losses suffered as a direct consequence of this breach It is material if the subject matter of dispute is legal or not. Here, cannabis plants have been destroyed. Applying the rule of Ex turpi causa non oritur actio is the illegality defence, the Latin for no right of action arises from a despicable cause. If the claimant Charles is involved in wrongdoing at the time the alleged negligence occurred, this may reduce, or snuff out the economic onus of the defendant, Cable Fast. While clause (b) and (c) have been validated, there is still doubt whether Company Cable Fast owes Charles, an outside duty of care. However it needs to be argued that Tort cases are essentially different from contract, in that liability may arise even to non contracted parties. In case of Jones v Powell, a brewery made malodorous fumes which spread onto neighbors property, damaging his papers. Being the landowner, the neighbor sued in nuisance for this damage. However, the judge observed that since the odour arouse due to water supply being contaminated, it was better off that the neighbors documents be risked. Davina – loss of ceramic container worth A £10,000: Here again, the question that would arise is whether trainee Engineer, Barry, had taken reasonable steps to avoid causing nuisance to neighbour Davina, which apparently had not been done. In the case of Ryland v. Fletchers, the doctrine of strict liability was applied. In this case, it is seen that negligence and defective service had been the main cause of the losses, which is very evident in this case too. Non economic losses caused to Euanis: Coming finally to Euanis, the student, it is believed that no economic losses were sustained by him, although he lost some part of his dissertation work. The English law of Tort concerns itself with just economic losses, wherein it is possible to offer restitution for economic losses through compensation and economic redressal. In the event Euanis wishes to sake a claim, he would need to quantify his claim in reasonable financial terms. Conclusion: To a very large extent, the Courts would need to consider surroundings of the case and its implications on tort laws before arriving at a just verdict. There are no hard and fast rules regarding tort, except application of common law, wherein the elements of duty of care, the need for exercising reasonableness which a person of ordinary prudence would have done under similar circumstances and finally, absence of negligence and miscarriage of profession ethics are very much needed. Reference List Copyright law: The basics, 2008. [Online] Out Law.com. Available at: http://www.out-law.com/page-5633 [Accessed 6 July 2010]. Hedley Byrne & Co Ltd v Heller & Partners Ltd: Judgment, 1964. [Online] Wapedia. Available at: http://wapedia.mobi/en/Hedley_Byrne_%26_Co_Ltd_v_Heller_%26_Partners_Ltd [Accessed 6 July 2010]. Speeches: Comparativism, realism and the economic factor, n.d. [Online] High court of Australia. Available at: http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_fleming.htm [Accessed 6 July 2010]. Supply of goods and services act 1982: Implied term about time for performance, 1982. [Online] OPSI. Available at: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1982/cukpga_19820029_en_5#pt4-l1g32 [Accessed 6 July 2010]. The origins and character of tortious liability, 2004. [Online] Unlocking TORTS, p.17. Available at: http://www.unlockingthelaw.co.uk/samples/tort%20law%20chapter%201.pdf [Accessed 6 July 2010]. What if I buy a DVD over the internet? n.d. [Online] FACT. Available at: http://www.fact-uk.org.uk/site/about/faq.htm#11 [Accessed 6 July 2010]. What is an exclusion clause? 2010. [Online] Wise Geek. Available at: http://www.wisegeek.com/what-is-an-exclusion-clause.htm [Accessed 6 July 2010]. Read More